2015 (11) TMI 83 - AT - Customs

Refund of Cess claimed Import natural rubber Refund rejected on grounds that assessment made in Bills of Entry were appealable and had attained finality, no appeal having been filed and in some cases refund were time barred and all cases were hit by unjust enrichment Appellant contended that refund claims are admissible when there is no assessment order on dispute - Assessment by assessing officer resulting in payment of duty when goods were exempted, is a case of sheer omission on part of assessing officer - As regards unjust enrichment, Certificate from cost accountant certifies that amount of cess was not charged in profit and loss account as expenses, rather it is show as Cess recoverable. Held That - Clause (ii) under Section 27 does not apply as duty is paid by appellant in pursuance of order of assessment, thus appellant s appeal on this point is rejected - There has been no accidental slip or omission - CVD duty was paid equivalent to cess as was understood by department as well as appellant thus Section 154 does not cover the case - no rectification of assessment order was ever sought by appellant Matter already decided against appellant on first two issue thus Court does not find it necessary to discuss third issue i.e unjust enrichment Decided against the assessee.

Summary

Issues:
1. Refund claim rejection
2. Maintainability of refund application without review of assessment
3. Time bar for refund claim
4. Unjust enrichment

Refund Claim Rejection:
The appellant appealed against the rejection of their refund claim for CVD equivalent to cess paid on imported rubber. The Asstt. Commissioner and Ld. Commissioner (Appeals) held the refund inadmissible due to finality of assessment, time bar, and unjust enrichment. The appellant argued citing the Delhi High Court judgment in Aman Medical Products Ltd. case, Section 154 of the Customs Act, and other relevant cases to support the admissibility of their refund claim.

Maintainability of Refund Application without Review of Assessment:
The Tribunal analyzed the Aman Medical Products Ltd. case and the Apex Court's judgment in Priya Blue Industries Ltd. case, emphasizing the importance of the assessment order. The Tribunal referred to the Supreme Court's decision in Escorts Ltd. case, stating that the bill of entry signed by the assessing officer constitutes an order of assessment. The Tribunal rejected the appellant's appeal on this ground, citing the precedence of the Supreme Court's decision.

Time Bar for Refund Claim:
The Tribunal considered the time bar aspect, referring to the Supreme Court's judgment in Kirloskar Pneumatic Company case. The appellant's reliance on Section 154 of the Customs Act was dismissed as there was no clerical or arithmetical error but a legal position clarified by the Supreme Court. The Tribunal analyzed relevant case laws and rejected the appellant's argument based on the absence of rectification orders and factual differences from cited cases.

Unjust Enrichment:
The appellant contended that their claims were not hit by unjust enrichment as they provided a certificate from a cost accountant showing the cess paid as recoverable in their balance sheet. However, the Tribunal did not delve into this issue as the appeal was already decided against the appellant on the first two grounds. Consequently, the Tribunal dismissed the appeal based on the findings on the first two issues without discussing the unjust enrichment aspect separately.

In conclusion, the Tribunal dismissed the appeal after thorough analysis of the issues related to the rejection of the refund claim, maintainability without review of assessment, time bar, and unjust enrichment, citing relevant legal judgments and provisions to support their decision.